24 Minn. 30 | Minn. | 1877
So far as necessary to be stated or considered
Defendant William Weaver, being the owner in fee and in possession of the premises in question, duly gave to one Brooks a first mortgage thereon, to secure a certain indebtedness of his therein named, and also a second mortgage thereon, in which his wife, the said defendant Lueretia, joined, to one Foster, to secure another debt of his to the latter.
Both these mortgages having been duly foreclosed, and the period of redemption having expired, Foster, as a redemptioner from the first and purchaser under the last foreclosure, became the absolute owner in fee of said premises, with the right of immediate possession. Afterwards, on the first day of April, 1866, Foster being still such owner, though not in possession, and the said Weaver, who yet retained possession of the premises, “had a general settlement and liquidation of all matters and mutual claims or accounts with each other up to that time, by which it was ascertained and agreed that there was due Foster from Weaver the sum of $2,678. In making up and fixing this amount they included and took into account the amount which Foster had paid Brooks to redeem from the first mortgage, and also the amount for which Foster had bid in the premises in question on the foreclosure of the mortgage thereon from Weaver and wife to himself. Both these sums were included in and went to make up this balance of $2,678, and in this settlement were treated as existing claims in favor of Foster and against Weaver; ” that, as part of the agreement of settlement, Foster was to reconvey the land to Weaver, and the latter was to give his promissory note for the amount found due on the settlement, and execute back to Foster a mortgage on the premises to secure the note. In carrying out the agreement the note was given at the time, stating on its face that it was secured by a mortgage, but for some cause neither the mortgage, nor the deed from Foster to Weaver, was in fact then executed.
Upon these facts the question is presented whether Mrs. Weaver will be permitted in a court of equity to make use of this deed, executed and delivered for the sole and specific purpose of consummating the agreement of settlement between her husband and Foster, and upon no other consideration, and of her legal title thereunder, to defeat the lien upon the property intended to be created by then’ mortgage to Huff.
The mere fact that the parties inadvertently omitted their execution and delivery in the exact time and manner intended, ought not, and cannot, preclude a court of equity from treating them, when executed and delivered in pursuance and furtherance of the agreement, as having both been made and delivered when they ought to have been, and giving them effect accordingly. The question is wholly unembarrassed by any intervening equities, accrued since the agreement of settlement, in respect either to the parties thereto or to third persons. Both Foster and Weaver have acted upon the settlement and received its benefits, the former by the transfer of the note and mortgage, and the appropriation of the avails thereof to his own use, and the latter by continuing in the possession, use, and occupancy of the premises, under the-agreement, as the equitable owner, entitled to the fee, mortgaging the same to secure the payment of his own debt, and' obtaining, as must be assumed from the findings, the transfer of the legal title to his wife, as a trustee for his benefit, at least to the extent of such his mortgaged indebtedness to Foster.
Moreover, it appears that the parties, Weaver and Foster, had mutual dealings and accounts between themselves, extending over a period anterior to the date of the settlement - in April, 1866, which were embraced and adjusted in the settlement. It is manifest if such settlement is to be now opened, and the parties thereto remitted to their legal rights,
Order affirmed.